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Paralegals in family courts not the solution

By Pamela CrossAmanda Dale

Sun., March 19, 2017

We participated in the consultation process led by Justice Bonkalo as she prepared her recently released report, Family Legal Services Review; a report that is focused primarily on whether or not paralegals should be permitted to play a formal role in family court proceedings.

We commend the attorney general for having the vision to identify the need for a review of legal services in Ontario’s family courts and Justice Bonkalo for taking on this largely thankless task.

Justice Annemarie Bonkalo, Chief Justice of the Ontario Court of Justice, prepared a report that is focused primarily on whether paralegals should be permitted a formal role in family court proceedings. (Tim Fraser / Law Society of Upper Canada)

The report has many thoughtful ideas, but it has a, literally, fatal flaw. It has failed to consider the unique needs of those whose situation has been assessed by every form of research to be a matter of life and death. Separation and pending child custody matters — all family law proceedings — are the single highest risk factors pointing to homicide in the cases of women experiencing domestic violence. And, they appear to make up the bulk of family law cases.

When the woman, her former partner, or both, do not have access to effective legal advice, support and, ultimately, representation, the risk of serious physical and psychological harm escalates.

The homicides of too many women in the last few years have shown us that this risk and its relationship to inadequate court responses shows no sign of abating.

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We work with women every day who accept dangerous custody and access arrangements with abusers. They regularly walk away from legal rights, such as support and a share of family property, either because they do not know their rights or because they cannot tolerate the legal bullying by their ex-partner. The majority of women cannot find a lawyer to represent them.

These challenges are magnified for women because of race or indigenous status or because they are newcomers to Canada. Women living in rural or remote parts of the province know better than anyone that lawyers and support services are thin on the ground and, combined with huge distances, these make for deadly results.

Cases involving violence within the family make up a significant percentage of all of Ontario’s family court cases. While precise numbers are impossible to find, Bonkalo’s report notes that in 2014/2015 almost 50 per cent — 13,196 of the 30,195 cases — legal aid family law certificates issued were for domestic violence clients.

How then did not one of the 21 recommendations in Justice Bonkalo’s report speak to this high risk reality? Instead, the report recommends that mandatory training for paralegals who do family court work include, among other topics, the issue of gender-based violence. This is simply not enough.

Why did the provincially funded Family Court Support Worker Program for victims of domestic violence not get more than a nod? Unlike paralegal services, they are accessible to those unable to pay. With adequate resourcing, Family Court Support Workers could take on many of the legal services the report proposes for paralegals and could bring an expertise on the issue of violence against women that is badly needed.

The report’s recommendation that paralegals be permitted to provide legal services with respect to custody and access reveals a weak understanding of the complexities on the ground. Decades of reports from the Coroner’s Office of Ontario, testify to this being the linchpin in women’s risk for deadly outcomes.

Those seeking the state’s protection while they try to build lives free from violence deserve full legal representation. This can only be guaranteed, as Justice Cohen has stated in her response to the Bonkalo report, if Ontario’s legal aid system is properly resourced.

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Whatever role paralegals, family court support workers or other non-lawyer experts play in family law proceedings ― and we agree they can and should play a role ― they cannot be used as an excuse to reduce government funding to Legal Aid Ontario.

Justice Bonkalo’s report is an important start to a long-overdue discussion about Ontario’s family courts. It must not leave behind the most vulnerable of those who turn to the family court system in times of crisis. In circumstances of scarcity, it seems a logical place to focus resources.

Pamela Cross is legal director at Luke’s Place Support and Resource Centre. Amanda Dale is executive director at the Barbra Schlifer Commemorative Clinic.

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